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[2023] ZAKZPHC 132
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Mbuyisa and Others v S (17574/2022P) [2023] ZAKZPHC 132 (10 November 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 17574/2022P
In
the matter between:
AARON
MBUYISA
FIRST APPELLANT
NTHETHELELO
ZULU.
SECOND APPELLANT
SAMKELISWE
NDWANDWE
THIRD APPELLANT
MUZI
KHUMALO
FOURTH APPELLANT
and
THE
STATE
RESPONDENT
Coram:
Davis AJ et Radebe J
Heard:
3 November 2023
Date
of Judgment: 10 November 2023
ORDER
On
appeal from:
Pongola Regional Court (sitting as court of first
instance):
1.
The appeals of the first, second, third and fourth appellants’
against their conviction on a charge of robbery with aggravating
circumstances are dismissed.
2.
This judgment is to be referred to the offices of the Director
of
Public Prosecutions in this division for their necessary oversight
over the inordinate delay in this appeal.
JUDGEMENT
Davis
AJ (Radebe J concurring)
Introduction
[1]
The four appellants, who were legally represented during their
trial, were convicted
of robbery with aggravating circumstances, read
with
s 51(2)
of the
Criminal Law Amendment Act 105 of 1997
on 28
August 2015 in the Regional Court sitting at Pongola before the
learned magistrate, Mr. Nhleko. The first appellant was also
charged
with and acquitted of possession of an unlicensed firearm.
[2]
On 21 September 2015, the appellants were sentenced to 12 years’
imprisonment,
the trial court having found substantial and compelling
circumstances being present that justified not imposing the
prescribed
minimum sentence of 15 years imprisonment. The trial court
being no longer available, leave to appeal, was heard by another
regional
magistrate
[1]
on 10
November 2016 at which leave to appeal was granted to all the
appellants against conviction only. It is this appeal which
serves
before us.
[3]
The transcripts reflect that the learned magistrate made his ruling
after placing
on record that he had read the transcription of the
record and found that leave to appeal should be granted.
[4]
It subsequently came to light that the record was incomplete, there
are no transcripts
available for the appearances on 29 April 2015 and
11 June 2015. It was at this time that the State closed its case and
the first
appellant testified and was cross examined to finality. The
form upon which the identification parade proceedings were recorded
has also been mislaid. The magistrate granting leave to appeal did
not mention the incomplete record.
[5]
Requests to reconstruct the record were unsuccessful and the trial
court is unable
to reconstruct the record as his notes have been lost
during a move of premises and neither the State nor the defence are
in a
position to assist. The trial court has deposed to an affidavit
outlining why the record cannot be reconstructed.
[6]
The first appellant’s appeal is premised entirely on the basis
that as his evidence
in chief and cross examination is absent, and as
such cannot be rectified. Therefore a failure of justice has occurred
and his
appeal should succeed. The remaining appellants appeal on
different grounds.
Legal
Position
[7]
The full bench of this division in
S
v Shangase
[2]
eloquently set out the correct approach by a court hearing an appeal
where part of the record is missing or incomplete. Henriques
J, on
behalf of the full court in
Shangase
,
wrote:
‘
[8]
There are a number of decisions which deal with
the sufficiency of an appeal record. In
Phakane
v S
[2017]
ZACC
44
;
2018 (1) SACR 300
;
2018 (4) BCLR
438
(CC), the Constitutional Court emphasised the appellant's right
to a fair appeal as entrenched in s 35(3) of the Constitution which
provides for every accused person to have a fair trial which includes
a right of appeal or review to a higher court. In
Phakane
when the matter first served before the
court a
quo,
the
Full Court had a complete appeal record save for the evidence of one
of the State witnesses. The court took the view that the
appeal could
be determined fairly despite the incomplete record and confirmed the
conviction but upheld the appeal on sentence.
The appellant then
sought leave to appeal this decision to the Constitutional Court. The
Constitutional Court had to decide whether
the State's failure to
deliver a complete trial record where the missing evidence could not
be reconstructed infringed on an appellant's
right to a fair appeal
entrenched in s 35(3) of the Constitution.
[9]
Of crucial importance in the trial court was the evidence of a
witness, a Mrs Manamela, whose evidence could not be transcribed
or
reconstructed. The Constitutional court, at paragraph 38 of the
judgment, held the following:
“
The failure of the
State to furnish an adequate record of the trial proceedings or a
record that reflects Ms Manamela's full evidence
before the trial
court in circumstances in which the missing evidence cannot be
reconstructed has the effect of rendering the applicant's
rights to a
fair appeal nugatory or illusory.”
[10]
Reference was also made to the decision in
S v Joubert
[1990]
ZASCA 113
;
1991 (1) SA 119
(A) in which the Appellate Division held
the following:
“
If during a trial
anything happens which results in prejudice to an accused of such a
nature that there has been a failure of justice,
the conviction
cannot stand. It seems to me that if something happens, affecting the
appeal, as happened in this case, which makes
a just hearing of the
appeal impossible, through no fault on the part of the appellant,
then likewise the appellant is prejudiced,
and there may be a failure
of justice. If this failure cannot be rectified, as in this case, it
seems to me that the conviction
cannot stand, because it cannot be
said that there has not been a failure of justice.”
[11]
The importance and necessity of the record of the proceedings in a
trial court being available on appeal was also succinctly
dealt with
by the Supreme Court of Appeal in the decision of
S v Chabedi
2005 (1) SACR 415
(SCA) paras 5-6, where Brand JA held the following:
“
On appeal, the
record of the proceedings in the trial court is of cardinal
importance. After all, that record forms the whole basis
of the
rehearing by the Court of appeal. If the record is inadequate for a
proper consideration of the appeal, it will, as a rule,
lead to the
conviction and sentence being set aside. However. the requirement is
that the record must be adequate for proper consideration
of the
appeal; not that it must be a perfect recordal of everything that was
said at the trial. As has been pointed out in previous
cases, records
of proceedings are often still kept by hand, in which event a
verbatim record is impossible...
The question whether
defects in a record are so serious that a proper consideration of the
appeal is not possible, cannot be answered
in the abstract. It
depends, inter a/ia, on the nature of the defects in the particular
record and on the nature of the issues
to be decided on appeal
.”
[12]
In
S v Schoombee and Another
2017 (2) SACR 1
(CC), the
Constitutional Court had to consider whether the right of an accused
person to participate in a reconstruction process
was part and parcel
of his rights to a fair appeal. In this matter, the appellants had
not participated in the reconstruction process
and the reconstruction
was based solely on the trial judge's notes. At paragraph 19, the
Constitutional Court once again emphasised
that it was:
“
...long
established in our criminal jurisprudence that an accused's right to
a fair trial encompasses the right to appeal. An adequate
record of
trial court proceedings is a key component of this right. When a
record "is inadequate for a proper consideration
of an appeal,
it will, as a rule, lead to the conviction and sentence being set
aside”.
At
paragraph 20, the court held:
“
If a trial record
goes missing, the presiding court may seek to reconstruct the record.
The reconstruction itself is "part
and parcel of the fair trial
process”.
Further,
at paragraph 21, the court held:
“
The obligation to
conduct a reconstruction does not fall entirely on the court. The
convicted accused shares the duty. When a trial
record is inadequate,
‘both the State and the appellant have a duty to try and
reconstruct the record’. While the trial
court is required to
furnish a copy of the record, the appellant or his/her legal
representative ‘carries the final responsibility
to ensure that
the appeal record is in order’. At the same time, a reviewing
court is obliged to ensure that an accused is
guaranteed the right to
a fair trial, including an adequate record on appeal, particularly
where an irregularity is apparent.”
(Footnotes omitted.)
[13]
The Constitutional Court confirmed the principle that in
circumstances “where the adjudication of an appeal on an·
imperfect record will not prejudice the appellants, their
convictions
need not be set aside solely on the basis of an error or omission in
the record or an improper reconstruction process”
. It held
that on the facts of the matter the record was detailed and specific
and the appellant, by not challenging the reconstructed
record when
the matter first served before the Full Court, could not do so before
it and rely on the imperfect record as a basis
for their convictions
and sentences to be set aside. It held that the record was adequate
for a just consideration of the issues
which the appellants had
raised on appeal.’ (my emphasis)
[8]
On appeal, in this matter, we need to decide whether or not the
record, as it presents
before us, is adequate for a just
consideration of the issues which the appellants, in particular the
first appellant, have raised
in this appeal.
Evaluation
of the adequacy of the incomplete record
[9]
Apart from the mislaid identification parade form, the evidence that
is absent from
the record is the evidence in chief and cross
examination of the first appellant. It seems to be forgotten that the
trial court
in its judgment summarized, in detail, the evidence of
the first appellant as follows:
‘
The
first appellant testified that he did not know anything about the
allegations against him. On the day of the incident he had
come from
Nongoma to Pongola with the third appellant to view a house that was
being sold. This house was being sold by the fourth
appellant. They
met at Pongola and proceeded to the WaterPas area where the house for
situated.’
[10]
After they viewed the house and discussed the price for the house the
first appellant and third
appellant left the second and fourth
appellant behind at the house. When they arrived at a taxi stop three
males (the fleeing group)
ran past them being pursued by a group of
another six people (the pursuing group) coming from the same
direction.
[11]
The pursuing group on arrival at the taxi stop, where the first
appellant and third appellant
were waiting. The pursuing group
accused the first and third appellant of being part of the fleeing
group. They then asked where
they had come from, the first appellant
told them he had come from Pongola to view a home that they wanted to
buy.
[12]
The pursuing group did not believe the first appellant and started to
assault them. They fled.
The first and third appellant were separated
and after running about a kilometre another group of people found him
at the bottom
of the river when he was about to go up towards a
school. They then made the first appellant walk to the shop, where
the robbery
occurred, where he found a group of people and a woman.
He had not seen this shop when he had initially gone to Khumalo’s
homestead.
[13]
On cross examination of the State witnesses it was put to them that
the first appellant was assaulted
at the shop again. Thereafter he
was taken to the hospital where he saw the complainant, Yusuf Patel.
According to the trial court’s
summary of the first appellant’s
evidence in the judgment, the first appellant when he testified told
the court that he was
not taken directly to the hospital, but he was,
in fact, taken to the clinic where he was refused treatment. He was
then transported
to the station and kept in a certain room at the
charge office and only received medical attention days later.
[14]
It was only on Monday when the first appellant was taken to hospital.
The robbery was committed
on 20 June 2013, which was a Thursday. The
significance of this is that the first appellant’s version, as
put to the State
witnesses during the State case, was that the first
appellant was identified by the shop owner because he saw the first
appellant
at the hospital on the same day as the robbery.
[15]
The first appellant claimed that he had never seen Ms Thembi
Sikhosana the complainant’s
employee before, the first time he
saw her was at court, and he conceded she pointed him out at the
identification parade along
with the complainant.
[16]
In its analysis the trial court found it highly improbable that the
complainant and Ms Sikhosana,
the complainant’s
employee, identified the first appellant if he had not been
present. The trial court found the identification
of the first
appellant as the person with the firearm both truthful and reliable.
The trial court found it extremely coincidental
that the first
appellant would have come to the fourth appellant’s homestead
on that day and that both of them are subsequently
identified as the
perpetrators. That coincidence in light of all the evidence is
impossible to accept as reasonably possibly true.
[17]
The trial court noted in the judgment that the first appellant’s
evidence about his arrest,
namely that he was standing at a taxi stop
when three persons ran past him followed quickly by six other
individuals who then accused
him of robbing the store was never put
to any of the State witnesses. The conclusion drawn by the presiding
officer was that the
first appellant fabricated this particular
version of events at the time he gave evidence. That conclusion
cannot be faulted. The
reliable
evidence on record is that the first appellant was arrested shortly
after the robbery carrying a firearm in his hand that
he only dropped
to the ground after a warning shot was fired.
[18]
Mr Mbokazi, of the legal aid board represented the first appellant,
in his address to the trial
court on the merits, says:
‘
the
reason why I am not mentioning accused 1…, whether he should
be found guilty or not, is that really one is in between
taking into
account the evidence that has been presented against the accused.
Therefore it becomes difficult for me to stand up
and say I am not
convinced that the accused’s guilt has not been proved beyond
reasonable doubt or not’.
[19]
Tellingly, during his address on the merits, unprompted by any
intervention from the bench, Mr
Mbokazi conceded that arguing against
the finding that the first appellant was correctly identified as one
of the perpetrators
is extremely difficult.
[3]
These concessions, with respect, are correctly made.
[20]
The Supreme Court of Appeal (SCA) in
S
v Chabedi
[4]
held, regarding an incomplete appeal record, as quoted above, that
the record need not ‘be a perfect recordal of everything
that
was said at the trial’. The test is whether, and this is worth
mentioning again is ‘whether defects in a record
are so serious
that a proper consideration of the appeal is not possible’.
[5]
The answer to this must be clear. The nature of the defects and the
issues to be decided are the determining factors in this regard.
[6]
This
question can only be answered on a consideration of the facts on a
case to case basis.
[21]
On the facts of this matter
the record in our view is detailed and specific enough. There is
sufficient evidence on record of the
first appellant evidence,
imperfect as it might be. There are a number of recordals of the 1
st
appellant’s version, firstly what was put to the state
witnesses during cross-examination, secondly the detailed recordal
of
the first appellants evidence by the trial court, the discrepancies
in the evidence compared to instructions put to witnesses
by the
legal representative of the first appellant. It is sufficient enough
to decide the merits of the appeal in a way that accords
with the
first appellants fair trial rights as envisaged in section 35 of the
Constitution.
[22]
In conclusion, the record is sufficiently adequate for a just
consideration of the issues which
the first appellant has raised on
appeal, including the incomplete record.
Adjudication
of the appeal
[23]
In
Sebidi
v S
the
court summarised the position as follows:
[7]
‘
It
is settled law that a court of appeal will not likely interfere with
credibility and factual findings of the trial court. In
the absence
of an irregularity or misdirection, the court of appeal is bound by
such findings, unless it is convinced
that
the findings are clearly incorrect or unless an examination of
the record reveals that those findings are patently wrong.’.
[24]
The authors Schmidt and Rademeyer summarised how evidence is assessed
on appeal as follows:
[8]
‘
When
an appeal is lodged against a trial court’s findings of fact,
the appeal court takes into account that the court a quo
was in a
more favourable position than itself to form a judgment because it
was able to observe witnesses during their questioning
and was
absorbed in the atmosphere of the trial from start to finish.
Initially, therefore, the appeal court assumes that the trial
court’s
findings were correct, and it will normally accept those findings
unless there is some indication that a mistake
was made.’ (footnote
omitted)
[25]
The SCA in
Hadebe
summarised the appeal courts approach to the trial courts findings as
follows:
[9]
‘
Before
considering these submissions it would be as well to recall yet again
that there are well-established principles governing
the hearing of
appeals against findings of fact. In short, in the absence of
demonstrable and material misdirection by the trial
Court, its
findings of fact are presumed to be correct and will only be
disregarded if the recorded evidence shows them to be clearly
wrong.
The reasons why this deference is shown by appellate Courts to
factual findings of the trial court are so well known that
restatement is unnecessary
.’
[26]
If the court of appeal is merely left in doubt as to the correctness
of the factual conclusions
arrived at by the trial court, it will
uphold them. The SCA restated the principle as follows
in
Naidoo
:
[10]
‘
a
Court of appeal does not overturn a trial Court's findings of fact
unless they are shown to be vitiated by material misdirection
or are
shown by the record to be wrong.’
[27]
Van
Heerden v S
pointed out that
[11]
‘
No
judgment is perfect and the fact that certain issues were not
referred to does not necessarily mean that these were overlooked.
It is accepted that factual errors do appear from time to time, that
reasons provided by a trial court are unsatisfactory or that
certain
facts or improbabilities are overlooked. As shown supra the
court of appeal should be hesitant to search for reasons
that are in
conflict with or adverse to the trial court’s conclusion.
However, in order to prevent a convicted person’s
right of
appeal to be illusionary, the court of appeal has a duty to
investigate the trial court’s factual findings in order
to
ascertain their correctness and if a mistake has been made to the
extent that the conviction cannot be upheld, it must interfere.’
Factual
matrix and the magistrate’s findings
[28]
The complainant’s shop is situated in the semi-rural area of
Pongola at a settlement known
as Waterpas The shop’s
construction is a unfortunately a familiar one , the staff serve
customers from behind burglar bars
and hand items through gaps in the
bars to the customers. Where items purchased are too large to pass
through the burglar bars
a door is opened to pass the goods to the
customer. This is necessary due to safety concerns inherent in the
nature of business
in these areas. The complainant’s shop sold
food items, household items such as cleaning materials and airtime.
[29]
On the day of the robbery the complainant was serving customers from
this position and his employee
Ms Sikhosana was preparing food in the
back of the premises. The first and fourth appellants came in and
asked to purchase mielie
meal. When the complainant opened the gate
in order to pass the mielie meal to the first and fourth appellant,
the first appellant
produced a firearm. He immediately grabbed the
complainant. The gun was held against the complainant’s face.
The first appellant
immediately removed the cell phone and some money
from the complainant’s pocket. The first appellant struck the
complainant
on the forehead with the firearm resulting in an open
wound on the head. The complainant was severely assaulted. The first
and
fourth appellants punched and kicked him as they forced him into
the back of the store-room. The fourth appellant was also armed
with
a knife. The fourth appellant tied the complainant up with a long
cord.
[30]
Ms Sikhosona was in the back of the store when she heard the
commotion and came to the front
of the store to see what was
happening. She was immediately confronted by the first and the fourth
appellants. She was grabbed
by the first appellant and watched the
complainant being tied up by the fourth appellant. On their demand
she took them to where
the money was usually kept, there she saw the
second and third appellant who were using hand gestures to keep
people from coming
into the store.
[31]
After being slapped by the first appellant Ms Sikhosona was also tied
up and their assailants
left the store with the items listed in the
charge-sheet. They immediately untied themselves and ran into the
street and raised
an alarm. She saw the four appellants walking down
the road together.
[32]
She alerted two traffic cops, Mr Ndlangamandla and Mr Ntshangae and
they along with the community
gave chase. She did not participate in
the chase, she waited along on the road near the store that had been
robbed. After the capture
of first to third appellants they were
brought to her and she identified all three as those that had been
involved in the robbery.
Later she identified
the four appellants at an identification parade.
[33]
The third appellant was almost immediately apprehended by traffic
officer Mr Ntshangase, who
was assisted by the community. Derek Qwabe
was one of the community members present at the time of the arrest of
the third appellant.
Pursuant to information from the community he
ultimately apprehended the first appellant. The information led him
onto a gravel
road where he saw the first appellant walking with a
Norinco pistol in his hand. Mr Qwabe shouted for the first appellant
to put
his firearm down, he refused, and Mr Qwabe fired a warning
shot, the first appellant then put the firearm down and he was
arrested.
[34]
The second appellant was arrested shortly thereafter. On information
from the community, the
two traffic officers proceeded to a toilet
situated at a nearby homestead in which a person was reported to be
hiding. On arrival
traffic officer Mr Ndlangamandla demanded that the
person inside the toilet come out. The door was opened, a bag was
thrown out.
Immediately thereafter the second appellant came out. A
knife was recovered and inside the bag they also found airtime.
[35]
The second appellant was crying and kept saying that ‘a Khumalo
had said they must leave
Nongoma and come to Pongola to commit a
robbery’. It was a voluntary spontaneous response. The second
appellant was assaulted
by the public and the traffic officers, who
tried to protect him.
[36]
Immediately on being taken into custody at the scene, the first to
third appellants, the complainant‘s
employee, Ms Sikhosana
identified all three of them as being part of the gang that had
robbed the store of the complainant. She
identified the first
appellant as the person who carried the firearm. The complainant’s
cell-phone was handed back to him
after he identified it as his by
activating the sim card and showing information on the phone that
proved it was his. It is unclear
from whom the phone was recovered.
[37]
Constable Miya, the arresting officer from SAPS, took the first
appellant to hospital on the
same day because of the injuries he had
sustained from the assaults of the public. The complainant was
present at the hospital
at the same time but Constable Miya
maintained the complainant and the first appellant did not see each
other at the hospital.
This is confirmed by the complainant. The
complainant later pointed out the first appellant at an
identification parade.
[12]
[38]
Although the date of the arrest of the fourth appellant and the
manner of his arrest was not
led by the State, the fourth appellant
when he gave evidence, testified that he was arrested on the Sunday
after the robbery, which
had occurred on a Thursday. He went to the
police station to collect a missing identity book and was arrested
while at the station.
The date of his arrest is consistent with the
record of his first appearance in the magistrates’ court.
[39]
The
fourth appellant’s version was that the second
appellant introduced the first and third appellants to him as
potential buyers
for a house that he was selling. He went into town
that day with the second appellant where they met the first and third
appellants
and discussed the sale. Thereafter they viewed the house.
[40]
After the meeting concluded the first and third appellants left. The
second appellant went to
buy headache pills but never returned. He
was called to an emergency concerning his cattle that had escaped
onto the N2. He knows
nothing about the robbery at the complainant’s
store, he never went to the store on the day of the robbery.
[41]
The fourth appellant maintains he was in a serious relationship with
the Ms Sikhosana, although
he knew her as a Buthelezi. His wife
disapproved of the relationship and this had caused conflict between
his wife and Ms Sikhosana.
This was fiercely denied by Ms Sikhosana.
He was a regular at the complainant’s store and the fourth
appellant maintains
that the complainant did not point him out at the
parade and that Ms Sikhosana initially did not either until prompted
to do so
by the police. The fourth appellant is according to him well
known to the witnesses. The fourth appellant called his elderly
mother
to corroborate the relationship, she failed to do so.
Appellant’s
submissions
[42]
No submissions were made in respect of the first appellant at the
trial pertaining to the merits
of the matter. The first appellant’s
legal representative at the trial in fact conceded that the evidence
against the first
appellant was unanswerable. In respect of the first
appellant, that concession is inevitable, the evidence implicating
the first
appellant is simply overwhelming. He is positively
identified by both the complainant and his employee, Ms Sikhosana.
Immediately
after the robbery he is pursued by police and the
community and arrested shortly afterwards openly in possession of a
firearm.
There can be little doubt that the court correctly found the
first appellant guilty of robbery with aggravating circumstances.
[43]
In respect of the submissions in respect of the second and third
appellants, counsel for the second
and third appellants maintains
that the evidence led was insufficient
for the trial court to make a finding that they participated in
the robbery. Although
no finding was made by the trial court of it
convicting on the basis of common purpose the submission is that
there was insufficient
evidence to link them to the crime.
[44]
Counsel for the second and third appellants maintains that their
decision not to give evidence
in the matter was the correct decision
as they had no case to answer at the closure of the State case. I am
not sure that conclusion
is correct.
[45]
The fourth appellant was identified by Ms Sikhosana, but he testified
that he was not on the
scene. Counsel submits that the identification
of the fourth appellant is unreliable, however the trial court found
that the issue
was more one of credibility than any question of the
reliability of the identification and this issue needs to be resolved
in this
appeal.
[46]
The trial court was, correctly so, alive to the need to evaluate all
the evidence in totality,
he warned against the compartmentalisation
of different aspects of evidence. The analysis of evidence in
isolation can lead to
conclusions that are not sustainable on a
careful conspectus of all the evidence
.
The court when evaluating evidence considers the totality of
the evidence in order to decide whether or not the guilt of
the
accused has been proved beyond reasonable doubt. The approach is that
the onus rests upon the State to prove the accused’s
guilt
beyond a reasonable doubt and the corollary is that, if the accused’s
version in the
light
of all the evidence on record
is reasonably possibly true and an innocent explanation, then he is
entitled to an acquittal.
[13]
[47]
In
Sithole
[14]
the SCA reiterated that
‘
A
court does not look at the evidence implicating the accused in
isolation to determine whether there is proof beyond reasonable
doubt
nor does it look at the exculpatory evidence in isolation to
determine whether it is reasonably possible that it might be
true.
The correct approach is set out in the following passage from
Mosephi
and others v R
LAC (1980 – 1984) 57 at 59 F-H:
“
The question for
determination is whether, in the light of all the evidence adduced at
the trial, the guilt of the appellants was
established beyond
reasonable doubt. The breaking down of a body of evidence into its
component parts is obviously a useful guide
to a proper understanding
and evaluation of it. But, in doing so, one must guard against a
tendency to focus too intently upon
the separate and individual part
of what is, after all, a mosaic of proof. Doubts about one aspect of
the evidence led in a trial
may arise when that aspect is viewed in
isolation. Those doubts may be set at rest when it is evaluated again
together with all
the other available evidence. That is not to say
that a broad and indulgent approach is appropriate when evaluating
evidence. Far
from it. There is no substitute for a detailed and
critical examination of each and every component in a body of
evidence. But,
once that has been done, it is necessary to step back
a pace and consider the mosaic as a whole. If that is not done, one
may fail
to see the wood for the trees.”’
[48]
I borrow from the trial court’s reasoning as quoted in
Shepard
[15]
‘
In
assessing the evidence, all of it must be considered, that is the
state witnesses and the defence witnesses. Any witness taken
in
isolation may not meet the required standard of proof but when his or
her evidence is considered collectively as part of the
mosaic a
different picture can and often emerge. That is what has transpired
here. Assessed and judged individually it is unlikely
that it can
safely be stated that any state witnesses has established the guilt
of the accused beyond reasonable doubt but collectively,
together
with that part of the accused’s testimony which is not in
conflict with the state case, a picture has emerged which
fits like a
hand into a glove enabling the court to find with the requisite
degree of certainty whether the accused was involved
in the final
conduct.’
[49]
When the evidence is approached on this basis it becomes clear that
the trial court properly
analysed the evidence before it and was free
of any misdirection and correctly concluded that the onus had been
discharged by the
prosecution. The conviction of the first appellant
is unassailable, the evidence is overwhelming against him and other
than the
incomplete record not a single submission has been made to
suggest that his appeal had reasonable prospects of success. His
appeal
against conviction falls to be dismissed.
The
second and third appellants
[50]
The submissions in respect of the second and third appellant that the
State has failed to prove
beyond reasonable doubt the case against
them. As the trial court pointed out, it is not only the
identification of them at the
shop entrance waving people away from
the scene and the vouchers recovered in the second appellants
possession, that points to
their guilt.
[51]
The following facts were found and considered by the trial court:
(a)
Ms Sikhosana identified the second and third appellants at the scene
just
outside and inside the shop.
(b)
They were waving, keeping people away from the shop.
(c)
The second appellant acknowledged the first appellant at this time.
(d)
The four appellants left together.
(e)
When Ms Sikhosana escaped and went outside, they were still together.
(f)
Ms Sikhosana raised the alarm, all four of them ran away, splitting
up.
(g)
The third appellant was arrested almost immediately.
(h)
Ms Sikhosana positively identified him at the scene.
(i)
A short while later Mr Qwabe arrested the second appellant
when he
was found hiding in a toilet.
(j)
The second appellant was found in possession of a knife and
airtime
vouchers in a bag.
(k)
The second appellant was crying and kept repeating words to the
effect
that Khumalo made them come from Nongoma to commit robbery.
(l)
Both the first and fourth appellants confirm that the four
were
together on the day and that the first and third appellants had come
from Nongoma to meet them.
[52]
There is therefore both direct and circumstantial evidence linking
them to the commission of
the robbery.
[53]
Notwithstanding the direct and circumstantial evidence against them
the second and third appellants
elected to utilise their right to
remain silent. That election has consequences, the trial court
concluded that ‘their failure
to testify and counter the
evidence that was led against them was important in the consideration
of the question whether or not
the state had discharged the onus’.
The trial court then found that the State has proven beyond
reasonable doubt that they
are the perpetrators.
[54]
The conclusion by the trial court is undoubtedly correct.
The proper approach in situations like this has been defined by the
SCA as follows:
[16]
‘
It
is trite law that a court is entitled to find that the State has
proved a fact beyond reasonable doubt if a
prima
facie
case has been established
and the accused fails to gainsay it, not necessarily by his own
evidence, but by any cogent
evidence. We use the expression '
prima
facie
evidence' here in the sense
in which it was used by this Court in
Ex
parte the Minister of Justice: In re R v Jacobson & Levy
1931
AD 466
, where Stratford JA said at 478:
“‘
Prima
facie
’' evidence in its more
usual sense, is used to mean
prima
facie
proof of an issue the burden
of proving which is upon the party giving that evidence. In the
absence of further evidence from
the other side, the
prima
facie
proof becomes conclusive
proof and the party giving it discharges his
onus
.”’
[55]
In
S v
Chabalala
[17]
the
SCA confirmed that:
‘
The
appellant was faced with direct and apparently credible evidence
which made him the prime mover in the offence. He was also
called on
to answer evidence of a similar nature relating to the parade. Both
attacks were those of a single witness and capable
of being
neutralised by an honest rebuttal. There can be no
acceptable explanation for him not rising to the challenge. If
he was innocent appellant must have ascertained his own whereabouts
and activities on 29 May and been able to vouch for his
non-participation.
He was also readily able to confirm that the
complainant indeed placed his hand on someone else's shoulder. To
have remained silent
in the face of the evidence was damning. He
thereby left the
prima facie
case to speak for
itself. One is bound to conclude that the totality of the evidence
taken in conjunction with his silence
excluded any reasonable doubt
about his guilt.’
[56]
When one considers the evidence in its totality, factoring into
account each piece of the jigsaw
of evidence, how each piece fits in
with the other evidence on record then the only conclusion in this
appeal is that the second
and third appellants'’ conviction as
participants in the robbery is correct. At no time in his judgment
did the trial court
convict the second and third appellants for
robbery other than on the basis that they were participants or
co-perpetrators. The
record shows that the trial court did not base
the second and third appellants’ conviction on the doctrine of
common purpose
at all. The trial court found that on all the evidence
the four appellants were all undoubtedly participants.
[57]
The first and fourth appellant entered the store while the second and
third appellants ensured
that no one interrupted the robbery. The
second and third appellants prevented persons from entering into the
store at this time.
They left together. Shortly thereafter the first
three appellants were arrested and identified by Ms Sikhosana. The
third appellant
on capture, immediately and spontaneously made a
statement that the robbery was committed at the behest of the fourth
appellant.
[58]
Airtime vouchers were recovered from him, whereas it is correct that
no evidence was tendered
conclusively showing that the vouchers were
taken from the store that inference is irresistible. The only
evidence on record, because
the third appellant declined to give
evidence, is as follows:
(a)
He was in the immediate vicinity of the shop, he is involved in
ensuring the robbery is
not interrupted by acting as an outside guard
preventing people from entering or approaching the store.
(b)
He leaves with the other three members of the ‘gang’ that
removed the items
from the shop.
(c)
They walk away together,
(d)
When the alarm is raised he flees along with the other three
perpetrators.
(e)
Shortly thereafter he is found hiding in a toilet with a knife and
bag containing airtime
vouchers.
(f)
His spontaneous reaction to a question about why he is hiding in the
toilet is to
say to traffic officers Mr Ndlangamandla, Mr Ntshangase
and other community members present, the fourth appellant
[18]
told them to leave Nongoma and come to Pongola to commit robbery.
[59]
With there being no explanation why the second appellant was in
possession of a knife and the
airtime vouchers of the complainant,
his spontaneous admission confirming a prior agreement to rob the
complainant, his close proximity
to the robbery both in time and
place makes the inference of his participation in the robbery
inescapable. The correct inference
is arrived at almost inevitably
when considering all the evidence holistically and not by focusing on
evidence in isolation.
[60]
Both the State and counsel for the appellants, in their heads of
argument and submissions before
this court, failed to heed the
approach of the SCA in how to approach the evidence implicating the
second and third appellants.
On a consideration of all the evidence,
the conclusion that on the the totality of the evidence the second
and third appellants’
guilt was proved.
[61]
Despite the trial court convicting on the basis of participation or
as co-perpetrators the State
concedes the appeal on the basis that
the appellants were not aware of the reliance on common purpose and
therefore the matter
has to be set aside. This would be so if the
appellants were convicted on the basis of common purpose but as the
judgment clearly
states the trial court convicted, in my view
correctly as perpetrators. It is necessary to briefly outline why the
doctrine of
common purpose played no role in the decision of the
trial court.
Co-perpetrators
and common purpose
[62]
It would appear that the State and for that matter counsel for the
appellants are of the belief
that as the second and third appellant
were not involved with the wielding of weapons and the removal of the
items from the complainant’s
possession and this necessarily
means that they could only be convicted in our law on the basis of
the doctrine of common purpose.
As they were not the ‘main
perpetrators’ that the lesser role played by the second and
third appellant meant that they
could only be convicted on the basis
of the doctrine of common purpose.
[63]
The State in its heads of argument concedes the merits of the appeal
on the basis that the doctrine
of evidence cannot be applied unless
the appellants were advised of the State’s reliance on the
doctrine before the trial
commenced. There was no mention in the
charge sheet of the State’s reliance on the doctrine and
therefore,
‘
as
the charge-sheet is silent on any possible reliance on the doctrine
of common purpose, and further that there was no application
for
amendment of the charge-sheet in terms of s 86 of the CPA, the
conviction of the appellant . . . cannot stand
.’
[19]
[64]
With respect to counsel on the facts of this matter the doctrine does
not apply, the State during
the trial did not seek to rely on the
doctrine of common purpose and the trial court in its judgment made
no mention of the doctrine.
The magistrate convicted on the basis
that all four appellants were perpetrators. A good illustration of
the law on the facts of
this matter is in
Hlongwane
[20]
where the court had the following two issues to decide: the first was
whether the appellant was a co-perpetrator or accomplice
in respect
of the robbery. The second was to determine if the appellant is a
co-perpetrator or an accomplice where he did not wield
or threaten
the complainants with a knife, and where only his co-participants
did.
[65]
In
Hlongwane
the
court said, with reference to the authors
Snyman
and
Hiemstra
,
the following:
[21]
‘
The
starting point is that a person can commit an offence directly or
vicariously through another and that where two or more persons
agree
to commit a specific crime, such as robbery, it is irrelevant what
task each was assigned for its execution. Each is a co-perpetrator
because he or she had agreed to commit the crime and either intended
that force would be applied in order to rob or foresaw that
possibility. Furthermore their agreement can be established through
circumstantial evidence alone.’
[66]
The requirements that must be present for an accused to be convicted
as a perpetrator are well
established.
The
fascination with who was primary perpetrator as opposed to a person
merely performing other tasks to ensure the actus reus is
completed
is misplaced.
[22]
Snyman
confirms:
[23]
‘
It
is not always practicable to identify one principal perpetrator or,
as he is sometimes called, “principal offender”
or
“actual perpetrator”. What criterion should be applied to
determine which one of a number of participants qualifies
as the
principal perpetrator? One cannot allege that the principal
perpetrator is the person who himself stabs the victim or, where
theft is involved, removes the article, for a person may commit a
crime through the instrumentality of another. If a number of
people
commit a crime and they all comply with the requirements for
perpetrators set out above, they are all simply co-perpetrators.
A
co-perpetrator does not fall into any category other than that of a
perpetrator.’
[67]
Snyman
uses the following example to explain the above quoted passage:
[24]
‘
A
enters a house and shoots and kills Y while B merely keeps guard
outside the house. Both are nevertheless co-perpetrators in the
commission of the murder, if the conduct of both can be described as
the unlawful intentional causing of the death. That one is
a
perpetrator in no way detracts from the fact that the other is also a
perpetrator.’
[68]
Precedent confirms this. In
Parry
,
[25]
for example, on a charge of murder the actual person who was
responsible for the delivery of the fatal blow was absent from the
trial and never convicted yet Parry was convicted on the basis of his
own acts and his own state of mind.
[69]
In
Williams
,
[26]
similarly it was said,
‘
An
accomplice's liability is accessorial in nature so that there can be
no question of an accomplice without a perpetrator or accomplice
committing the crime.
A perpetrator complies with all the
requirements of the crime definition in question. Where co-principals
commit the crime together,
each co-defendant complies with all the
requirements of the crime definition involved. On the other hand, an
accomplice is not
a perpetrator as the perpetrator's actus reus is
missing from him
. An accomplice knowingly associates himself with
the commission of the crime by the perpetrator or co-principals in
that he is
knowingly helpful in the commission of the crime or by
knowingly providing the perpetrator or co-principals with the
opportunity,
the means or the information that promotes the
commission of the crime.’
[70]
In
S
v Khoza
,
[27]
the proper terminology in the participation doctrine was discussed. A
participant may take the form of a perpetrator, co-perpetrator
or an
accomplice. This distinction between the forms of participants in an
offence was restated in
S
v
Kimberley
[28]
where the following was held:
‘
Perpetrators
and accomplices are all participants in a crime. A perpetrator is one
who performs the act that constitutes the particular
crime with
the intention required by law for that crime. Where two or more
persons together perpetrate a crime, they are termed
co-perpetrators
.
An accomplice is neither a perpetrator nor a co-perpetrator, in that
the acts performed by him do not constitute a component of
the
actus
reus
of the particular crime. He is one that consciously
associates himself with the commission of the crime by aiding or
assisting the perpetrator, which generally involves affording him or
her opportunity, means or information in respect of the commission
of
the crime. The criminal liability of the accomplice is therefore
accessory in nature.’
[71]
Hiemstra
’s
[29]
explanation in his commentary logically sets out the correct
approach, under the heading aptly named ‘
Unnecessary
reliance on common purpose’, and explains why the State’s
concession in their heads of argument is based
on an incorrect
premise:
‘
The
doctrine of common purpose is often applied where it is unnecessary
and inappropriate. This not only leads to muddling of the
principles
of participation but, more importantly, confuses the evaluation of
the evidence by the person who has to decide on the
facts.
The
doctrine postulates as point of departure the absence of an agreement
to commit the offence alleged
.’
[72]
Hiemstra
continues as follows:
[30]
‘
Common
purpose thinking is irrelevant where an agreement to commit the
offence has been proved by means of direct or circumstantial
evidence
or both. Botha JA's discussion in
S
v Mgedezi and Others
1989
(1) SA 687
(A) at 705I of the prerequisites for liability based on
the doctrine is expressly based on the premise: “In the absence
of
a prior agreement . . .”.
Holmes
JA in
S
v Ngobozi
takes as point of departure the absence of an agreement to murder.
To
invoke, as is sometimes done, common purpose in the case of a hired
assassin is wrong in principle and calculated to confuse
the
judex
facti
.
[31]
In such cases the parties are simply co-perpetrators, with the person
hired as direct actor, and the person who hires as vicarious
actor.’
On
the facts of this appeal there is both circumstantial and direct
evidence of a prior agreement to rob the complainant.
[73]
Hiemstra
makes the point even clearer by using this example:
[32]
‘
five
robbers, all members of a gang, commit a bank robbery in the central
business district in broad daylight. A sits waiting in
the getaway
car around the corner; B is the sentry across the road; C
enters the bank with a suitcase in which to load
the spoils; and
D and E, both armed with AK47s, walk into the bank and open fire as
they enter and fatally wound several bystanders.
All five are guilty
of murder, not as a result of a forced application of the doctrine
but simply as co-perpetrators. Against each
one the inference would
be irresistible that he agreed that shots would be fired (by himself
or one of the others), with the intent
to kill bystanders or, at best
for him, that he foresaw the real risk of such death and was
indifferent thereto. Each of the members
of the gang had the direct
intent to apply deadly force in order to rob as to the murders there
was thus, at the very least, intention
by foresight of possibility
(legal intention). Each fulfilled his agreed role in the execution of
such intent. Each is thus a co-perpetrator
in the commission of the
murder, albeit vicariously in the case of those who did not directly
participate in the shootings but
nevertheless participated fully in
the crime.
In such case invocation of
the doctrine of common purpose is superfluous
.
The correct result would be reached by a simple application of the
principles of the law of participation on the given facts.’
[74]
In casu, the second and third appellants did not testify, the
unassailable facts correctly accepted
by the trial court are that the
second and third appellants’ roles in the robbery at the
complainant’s store was the
following:
(a)
The four people involved met on the day and there was an
agreement to rob the store.
(b)
Two persons armed with a firearm and a knife went into the
store to subdue the resistance of those at the shop.
(c)
The second and third appellants stood sentry guard outside to
prevent assistance from entering to allow those inside to complete
the act of robbery (i.e.
actus reus
).
(d)
Immediately after the completion of the act they left
together.
(e)
They split up only after the alarm was raised.
(f)
They were arrested shortly afterwards, the second appellant in
possession of a knife and airtime vouchers.
(g)
The second appellant makes a spontaneous declaration, crying
or complaining that ‘a certain Khumalo person who is the one
that said they must leave Nongoma and come to Pongola to commit
robbery.’
[75]
The evidence shows that the second and third appellants entered into
an agreement to rob the
complainant’s shop sometime prior to
the robbery. They performed acts as described to assist in the
completion of the robbery
(i.e.
actus reus
) and to prevent and
overcome any resistance to the robbery. They are all co-perpetrators,
independent of any common purpose which
has as its rationale the
imputation of the
actus reus
to all the accused when the State
cannot prove that all accused committed the
actus reus
.
[76]
On the requirements as succinctly set out by
Hiemstra
above,
the second and third appellants are co-perpetrators, the trial court
did not convict the second and third appellants by
invoking the
doctrine of common purpose, but because they fully participated in
the crime, including the completion of the act
(i.e.
actus reus
).
The appeal in respect of the second and third appellants against
their conviction on a charge of robbery with aggravating
circumstances
consequently falls to be dismissed.
The
fourth appellant
[77]
The State conceded the issue of identification raised in the heads of
argument of the fourth
appellant, State counsel submitted that the
dock identification of the fourth appellant carried little weight.
The SCA has held
that:
‘
Dock
identification may be irrelevant evidence generally, unless it is
shown to be sourced in an independent preceding identification,
it
carries little weight: “taken on its own it is
suspect”.’
[33]
(footnotes
omitted)
[78]
In
Tandwa
[34]
the SCA said,
‘
In
ordinary circumstances, a witness should be interrogated to ensure
that the identification is not in error. Questions include
–
“
what features,
marks or indications they identify the person whom they claim to
recognise. Questions relating to his height, build,
complexion, what
clothing he was wearing and so on should be put. A bald statement
that the accused is the person who committed
the crime is not enough.
Such a statement unexplored, untested and uninvestigated, leaves the
door wide open for the possibility
of mistake.”’
(footnote omitted)
[79]
The factual basis of the concession in the heads of argument is
incorrect. It is submitted on
behalf of the fourth appellant that the
single evidence of Ms Sikhosana who identified the fourth appellant
as the person who tied
the complainant and her up and was armed with
a knife is unreliable. According to the State’s heads of
argument, this
is especially so as it was a dock identification.
Whereas Ms Sikhosana did not testify about attending an
identification parade,
indeed the prosecution surprisingly did not
lead her on that aspect, however the fourth appellant did testify
about the identification
parade.
[35]
[80]
Unfortunately counsel for the State clearly placed their heads of
argument before this appeal
court without acquainting itself with the
record in a way consonant with their duties to the court and indeed
the victims of crime.
A detailed reading of the record would have
revealed that she attended the identification parade.
[81]
The record of the fourth appellant’s evidence reveals that the
four appellants stood on
an identification parade with over 20 other
people standing. The complainant pointed out the first appellant and
a ‘wrong’
person, then Ms Sikhosana attended at the
parade and pointed out the first, second and third appellants. She
then conferred with
a police officer and pointed the fourth appellant
out thereafter. The identification of the fourth appellant was done
at an identification
parade.
[82]
At the identification parade two attorneys represented the four
appellants. During the leading
of the fourth appellant in his
evidence in chief his attorney asked him , to comment, on the fact
that the form recorded that Ms
Sikhosana took three minutes to
correctly point out all four appellants, and no-one else. The fourth
appellant’s identification
patently was not a dock
identification.
[83]
The fourth appellant’s version in respect of Ms Sikhosana, the
identifying witness, was
that they were involved in a relationship
and there was a dispute between the Ms Sikhosana and the fourth
appellant’s wife.
As the trial court stated the issue was one
of credibility not identification. There was no cross examination on
how she identified
him, the fourth appellant’s version was that
Ms Sikhosana identified him due to her conflict with his wife. He
maintained
he was being falsely accused by her out of malice, there
was no honest mistake.
[84]
Despite the indication when cross examining the witnesses for the
state that numerous witnesses
were to be called to verify the
relationship, only the fourth appellants elderly mother was called
and, with respect, the trial
court’s rejection of her evidence
and that of the fourth appellant cannot be faulted. They were poor
witnesses and their
evidence replete with contradictions and
improbabilities. There is nothing in this record to suggest that the
trial court misdirected
or erred in its evaluation of the evidence in
this regard or its final rejection of the fourth appellant’s
evidence.
[85]
Prior to the acceptance of Ms Sikhosana’s evidence, the trial
court analysed and approached
the evidence with caution and found to
be reliable. The fourth appellant’s version was correctly
rejected as on the totality
of the evidence as not being reasonably
possibly true. There is no misdirection, there was ample evidence to
support that conclusion
both direct and circumstantial.
[86]
There is ample supporting evidence both direct and circumstantial to
support the findings of
the trial court that it is the four
appellants who were the four co-perpetrators of the robbery at the
premises of the complainant.
It is common cause that they were
together on the day of the robbery, the second appellant’s
spontaneous response when he
exited the toilet is a strong indicator
that the fourth appellant had summoned the three others to Pongola
from the Nongoma area
to commit this robbery. They were together for
a period before the robbery was committed. The fourth appellant’s
evidence
was correctly found to be mendacious.
[87]
Malan JA in
Mlambo
[36]
stated:
‘
In
my opinion, there is no obligation upon the Crown to close every
avenue of escape which may be said to be open to an accused.
It
is sufficient for the Crown to produce evidence by means of
which such a high degree of probability is raised that the
ordinary
reasonable man, after mature consideration, comes to the conclusion
that there exists no reasonable doubt that an accused
has committed
the crime charged. He must, in other words, be morally certain of the
guilt of the accused.
An accused's claim to the
benefit of a doubt when it may be said to exist must not be derived
from speculation but must rest upon
a reasonable and solid foundation
created either by positive evidence or gathered from reasonable
inferences which are not in conflict
with, or outweighed by, the
proved facts of the case.
Moreover,
if an accused deliberately takes the risk of giving false evidence in
the hope of being convicted of a less serious crime
or even,
perchance, escaping conviction altogether and his evidence is
declared to be false and irreconcilable with the proved
facts a court
will, in suitable cases, be fully justified in rejecting an argument
that, notwithstanding that the accused did not
avail himself of the
opportunity to mitigate the gravity of the offence, he
should nevertheless receive the same benefits
as if he had done
so.’
[88]
In my view the trial the trial court correctly weighed and assessed
all the evidence and correctly
convicted all four of the appellants.
[89]
The appellants first appeared before the magistrate in Pongola on 24
June 2013, they were sentenced
on 21 September 2015. Leave to appeal
was granted on 10 November 2016. Whereas some of the delay is caused
by the difficulties
occasioned by the reconstruction of the
incomplete report, almost seven years has lapsed since leave to
appeal was granted. There
was every prospect that the appellants fair
trial rights would have been rendered illusory by the delay simply by
the effluxion
of time. This is not acceptable and requires attention
by the role-players in the criminal justice system. For this reason
this
judgment on appeal is to be referred to the offices of the
Director of Public Prosecutions in this division for their oversight.
Order
[90]
Accordingly, I make the following order:
1.
The appeals of the first, second, third and fourth appellants’
appeals
against their conviction on a charge of robbery with
aggravating circumstances are dismissed.
2.
This judgment is to be referred to the offices of the Director of
Public Prosecutions
in this division for their necessary oversight
over the inordinate delay in this appeal.
DAVIS
AJ
I
agree, and it is so ordered.
RADEBE
J
APPEARANCES
Counsel
for the appellants:
Ms.
Krause
Instructed
by:
Legal
Aid
187
Hoosen Haffejee Street
Pietermaritzburg
Counsel
for the respondent:
Mr
Mbokazi
Instructed
by:
National
Prosecuting Authority.
[1]
Mr M Nkosi.
[2]
Shangase
v S
[2023] ZAKZPHC 8 per Henriques J with Poyo-Dlwati JP and Ploos Van
Amstel J concurring.
[3]
The transcript at 165.
[4]
S v
Chabedi
2005 (1) SACR 415
(SCA) paras 5 – 6, see
Shangase
v S
[2023] ZAKZPHC 8 para 11.
[5]
S v
Chabedi
2005 (1) SACR 415
(SCA) para 6.
[6]
S v
Chabedi
2005 (1) SACR 415
(SCA) para 6.
[7]
Sebidi
and others v S
[2023] ZANWHC 151
para 18, where the court referred to:
S
v Francis
1991
(1) SACR 198
(A)
at 204c – e,
S
v Mkohle
1990
(1) SACR 95
(A)
at 100e.
[8]
CWH Schmidt and H Rademeyer
Law
of Evidence
(Services Issue 21, May 2023) at 3-40, and the cases cited.
[9]
S
v
Hadebe
1997
(2) SACR 641
(SCA)
at 645e – f.
[10]
S
v Naidoo and others
2003
(1) SACR 347
(SCA)
at para 26; see also the following
dictum
of
the SCA in
Beukes
v Smith
[2019]
ZASCA 48
;
2020 (4) SA 51
(SCA)
para
22:
‘
It
is trite that the powers of an appeal court to overturn factual
findings by a trial court are restricted. But where the findings
of
a trial court are based on false premises or where relevant facts
have been ignored, or where the factual findings are clearly
wrong,
the appeal court is bound to reverse them.’ (footnote omitted)
[11]
Van
Heerden v S
[2021] ZAFSHC 275
para 16 where the court references
S
v M
2006
(1) SACR 135
(SCA) para 40.
[12]
The significance and probative value of the identification parade is
doubtful on these facts. The complainant identified the
first
appellant at the scene, a short time after the robbery. Ms Sikhosana
identified the first to third appellants at the scene
shortly after
the robbery. The fourth appellant maintains he had an intimate
relationship with the witness, he does not argue
that it is an
honest but mistaken identification but one out of some sort of
malice without any good reason for it. Thembi Sikhosana
maintained
that she does not know the fourth appellant and her identification
of him was as a consequence of the robbery.
[13]
S v
Trainor
2003 (1) SACR 35
(SCA) para 9,
Sithole
v S
[2012]
ZASCA 85
para 8,
S
v Doorewaard and another
[2020] ZASCA 155
;
2021 (1) SACR 235
(SCA) para 133.
[14]
Sithole
v S
[2012]
ZASCA 85
para 8. See also
S
v Hadebe
1998 (1) SACR 422
(SCA) at 426e-h.
[15]
Shepard
v S
[2018] ZAKZPHC 70 para 56, where the court quoted from the
magistrate’s judgment. See also
S
v Mavinini
2009 (1) SACR 523
(SCA) para 26, quoted in para 55 in
Shepherd
.
[16]
S v
Boesak
[2000] ZASCA 112
;
2000 (3) SA 381
(SCA) para 46.
[17]
S v
Chabalala
2003 (1) SACR 134
SCA para 21.
[18]
In context of the evidence in its totality the fourth appellant is
the only person he could be referring to.
[19]
S v
Msimango
[2017]
ZASCA 181
;
2018 (1) SACR 276
(SCA) para 18.
[20]
S v
Hlongwane
[2014] ZAGPPHC 332;
2014 (2) SACR 397
(GP). See SV Hoctor Snyman’s
Criminal Law 7ed (2020) at 224 – 227, A Kruger
Hiemstra's
Criminal Procedure
(Service Issue 16 February 2023) at 22-29 onwards.
[21]
S v
Hlongwane
[2014] ZAGPPHC 332;
2014 (2) SACR 397
(GP) para 41.
[22]
SV Hoctor
Snyman’s
Criminal Law
7ed (2020) at 222.
‘
If
a number of persons commit a crime together, it is unnecessary to
stipulate that only one of them can be the perpetrator, and
that the
others who help in its commission must necessarily fall into a
different category.’
[23]
SV Hoctor
Snyman’s
Criminal Law
7ed (2020) at 222.
[24]
SV Hoctor
Snyman’s
Criminal Law
7ed (2020) at 223.
[25]
R
v
Parry
1924
AD 401.
[26]
Joubert JA in
S
v Williams
1980 (1) SA 60
(A) at 63A-B as translated from Afrikaans to
English by me.
[27]
S v
Khoza
1982 (3) SA 1019
(A) at 1031B-F.
[28]
S v
Kimberley and another
2004 (2) SACR 38
(E) para 10.
[29]
A Kruger
Hiemstra's
Criminal Procedure
(Service Issue 16 February 2023) at 22-29 – 22-30.
[30]
A Kruger
Hiemstra's
Criminal Procedure
(Service Issue 16 February 2023) at 22-29 – 22-30.
[31]
This is Latin for the ‘trier of facts’.
[32]
A Kruger
Hiemstra's
Criminal Procedure
(Service Issue 16 February 2023) at 22-30.
[33]
S v
Tandwa and others
2008 (1) SACR 613
(SCA) para 129.
[34]
S v
Tandwa and others
2008 (1) SACR 613
(SCA) para 130, see also from para 131 onwards.
[35]
Transcribed record at 127-130.
[36]
R v
Mlambo
1957 (4) SA 727
(A) at 737A-D.